01/27/76 PEOPLE v. HURST

Levin, J. Kavanagh, C. J., and Williams, J., concurred with Levin, J. Fitzgerald, Lindemer, and Ryan, JJ., took no part in the decision of this case. Coleman, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Trial -- Joinder -- Severance.

A defendant is entitled to a trial separate from a co-defendant who, it appears, may testify to exculpate himself and incriminate the defendant seeking a separate trial.

2. -- Trial -- Joinder.

Joinder of criminal defendants for trial is usually within the discretion of the court; the general rule is that a defendant does not have a right to a separate trial.

3. -- Trial -- Joinder.

Ordering a joint trial for manslaughter over one defendant's objection was reversible error where the tendency of the testimony of each of the defendants was to accuse the other of causing the death of the victim and the objecting defendant was aware of the codefendant's extra-judicial statements incriminating him and correctly anticipated that if the two were tried jointly the co-defendant would testify against him.

4. -- Instructions to Jury -- Lesser Offenses.

An instruction to the jury which suggested that consideration of a lesser offense could not begin if one juror held out for conviction of the offense charged is improper and should be avoided in the future.

Dissenting Opinion

Coleman, J.

5. Appeal and Error -- Briefs -- Abandonment of Issue.

It is well settled that an issue on appeal is abandoned if the party does not brief and argue that issue.

6. -- Trial -- Joinder -- Discretion.

Joinder of defendants for trial is usually within the discretion of the trial court.

7. -- Trial -- Joinder -- Antagonistic Defenses.

There was no abuse of discretion in ordering a joint trial for manslaughter for defendants whose defenses were not antagonistic where both defendants originally maintained that the victim's injuries were caused by a fall down the steps, the jury could have believed their testimony and found neither of them guilty, and neither defendant directly accused the other of causing the victim's death.

The opinion of the court was delivered by: Levin

Norwood Hurst and Carolyn Kelker were jointly tried and convicted of manslaughter in the death of their daughter by a jury in Washtenaw Circuit Court, Ross W. Campbell, J. A motion by the prosecution for a joint trial was granted over the objection of Hurst's attorney that the defendants' defenses were antagonistic. Each defendant had been urged to testify against the other and Kelker made statements to the police exculpating herself and incriminating Hurst. Prior to joinder the prosecution stipulated not to use any statement of either defendant, but at trial the prosecution used a separate record and offer of proof to impeach Kelker's testimony with prior inconsistent statements and to threaten her with a perjury charge. Hurst appealed, contending the prosecutor misused Kelker's statement. The Court of Appeals, Fitzgerald, P. J., and J. H. Gillis and P. O. Adams, JJ., affirmed in a memorandum opinion, stating that the prosecutor's stipulation could not be used by the defendants as a license to commit perjury (Docket No. 14073). Defendant Hurst appeals. Held:

1. A defendant is entitled to a trial separate from a co-defendant who, it appears, may testify to exculpate himself and incriminate the defendant seeking a separate trial.

2. The trial Judge erred in ordering a joint trial. Under the circumstances Hurst was denied a fair trial because, while neither defendant directly accused the other, the tendency of the testimony of each was to accuse the other of the child's death. Therefore, it is unnecessary to decide whether use of Kelker's statement violated the stipulation.

Reversed and remanded.

Justice Coleman Dissented on two grounds:

First, the defendant did not brief the joinder question in either the Court of Appeals or the Supreme Court and it is well settled that an issue on appeal is abandoned if the party does not brief that issue.

Second, joinder of defendants for trial is usually within the discretion of the trial court. The defenses were not antagonistic; the jury could have believed Kelker's testimony and found neither of them guilty. Neither Kelker nor Hurst directly accused the other of causing Evelyn's death and there was no abuse of discretion in ordering a joint trial. The real issue in this case was the perjured testimony of Kelker.

Norwood Hurst and Carolyn Kelker *fn1 were jointly tried and convicted of manslaughter in the death of their 18-month-old daughter, Evelyn.

Hurst appealed *fn2 contending the prosecutor misused a separate record and offer of proof to impeach Kelker's testimony with prior inconsistent statements and to threaten her with a perjury charge after he had stipulated, prior to joinder of the two informations for trial, not to use any statement of either defendant.

The Court of Appeals, stating that the prosecutor's stipulation could not be used by the defendants as a license to commit perjury, affirmed.

We conclude that the trial Judge erred in ordering a joint trial and it is, therefore, unnecessary to decide whether the prosecutor's use of Kelker's prior statements violated the stipulation. *fn3

Initially the Judge ordered separate trials. Hurst's lawyer opposed the prosecutor's subsequent motion for a joint trial. He claimed the defenses of the defendants were antagonistic as "both parties have been urged to testify against the other party" and cited Kelker's statements to the police exculpating herself and incriminating Hurst. The prosecutor sought a joint trial to save the expense of having an out-of-town witness brought in twice to testify and agreed not to use extra-judicial statements of either defendant. The motion was granted over the objection of Hurst's lawyer:

"f you brought two adversaries into court into an adversary system, you know, you end up, it could easily end up being two adversaries, don't need the prosecutor, these two people either convict one or the other * * * two people charged with a crime and bring them into court and pit them against each other. You can forget the prosecutory system * * *."

At the trial, Kelker's statements were in fact used to elicit from her testimony incriminating ...

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